Application by Director-General, Department of Community Services; re L (a child) [2008] NSWSC 235

CASES CITED : Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040; BC200306811

PARTIES : Director-General, Department of Community Services (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

80008/08 APPLICATION BY DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES; RE L (A CHILD) JUDGMENT 1 HIS HONOUR: By summons filed on 12 February 2008, the Director-General of the Department of Community Services seeks an order under s 84 of the Adoption Act 2000 (NSW) for parental responsibility for the child L in his favour. The summons also seeks orders making provision for the Principal Officer of Anglicare Adoption Services to provide regular supervision of L's placement with Mr and Mrs T, and for a further report on the child's progress to be provided to the Court by the Principal Officer of Anglicare within 12 months. The supporting affidavit is, in part, in the nature of a s 78 report to the Court. 2 This case raises some issues about the proper construction of the Adoption Act 2000 (NSW), as well as some questions about the best interests of a child who is awaiting adoption. Facts 3 L was born on 12 April 2006. Her birth parents have several other children. Shortly after L's birth they approached Anglicare Adoption Services, asking the agency to arrange for L to be adopted. Both birth parents have signed instruments of general consent, each dated 6 September 2006, consenting to the adoption of L by an adoptive parent or parents selected in accordance with the law of New South Wales. They acknowledge that they have received the information and counselling required by the Act. The forms of consent are in evidence and appear, on their face, to be regular. 4 On 13 October 2006 Anglicare Adoption Services placed L with Mr and Mrs T, persons approved as suitable to adopt. On 19 November 2007 the Principal Officer of Anglicare wrote to the Department's Director, Adoption and Permanent Care Services, about L's placement and progress, apologising for the delay in doing so. On 11 December 2007 she forwarded to the Department the information necessary for a s 78 report. 5 When the case first came before me for consideration, the Principal Officer's letter and report caused me to be concerned about four matters. The first matter was a suggestion that, although she was said to be a delightful little girl, L's developmental progress was not as it should be. She was late in starting to walk and there were concerns about her fine motor skills and communication skills, leading to an assessment by Noah's Ark Centre on 24 May 2007, which recommended physiotherapy, continuance of day-care and a later review. A review was conducted by Noah's Ark Centre on 20 September 2007, and it was reported that although L had shown some progress, her development in a number of areas remained of concern. 6 The second matter, which I need not elaborate on here, was that some things Mr and Mrs T had done (including cancellation of meetings with agency staff) created some grounds for uneasiness about aspects of the placement. 7 The third matter was that the Principal Officer's report dated 11 December 2007 had referred to a case conference to monitor and review L's development status, planned to be held in January 2008 after she had been assessed by the Autism Association. There was initially no evidence presented to the Court about the outcome of the case conference or the assessment. 8 The fourth matter was the substantial delay that had occurred, on the part of Anglicare, in providing the information that the Department needed for its application to the Court. 9 By letter dated 25 February 2008, written at my instigation, the Registrar of the Court raised these four matters with the Department. The Department responded on 12 March 2008 with written submissions and further affidavit evidence. The affidavit annexed a psychological assessment report by three psychologists on behalf of Autism Spectrum Australia relating to their assessment of L on 18 February 2008. Their conclusions, in summary, were that L was performing at around the 16 month level of development, though she was 21 months old when assessed, but she did not show sufficient social impairment relative to developmental level to warrant diagnosis of an autism spectrum disorder. 10 Importantly for my purposes, the affidavit reports on a meeting between the Departmental officer and the Principal Officer of Anglicare held on 6 March 2008, during which the Principal Officer said words to the effect: "The family appear very attached to [L] and seem to be meeting her needs …" A statement of that kind was missing from the evidence when it was first presented to me, and the information initially presented by Anglicare gave the overall impression that the Principal Officer may have had some doubts about this placement. In applications of this kind, the Court must rely heavily on assessments made by qualified people at the front line, based on observing the child in interaction with those who are caring for her. The additional evidence of the Principal Officer's assessment has addressed my apprehension that Mr and Mrs T might not have been fully committed to L's welfare, to the extent necessary for the purposes of the present interim application. 11 A meeting has been arranged between Mr and Mrs T and agency staff and was scheduled to be held on 20 March 2008, to discuss amongst other things the report by Autism Spectrum Australia and whether it will affect Mr and Mrs T's continued parenting of L. I do not presently know whether the meeting has taken place. The Department contemplates that after the meeting has been held, it will organise a case conference with Anglicare to confirm a plan for L's future care. 12 As to the question of delay, the Director-General's written submissions to the Court contain the following paragraph: "The Director DoCS Adoption and Permanent Care Services concurs with the Justice's concerns regarding the delay in this application and will ensure that an early resolution is achieved whilst ensuring that whatever assessment or support may be necessary is adequately pursued for [L's] best interests. The attached affidavit sets out the immediate plan for a timely resolution of [L's] permanency needs. It is essential that all information is at hand regarding the circumstances of [L] and the proposed adoptive family and this information is comprehensively considered by all agencies involved with the family before a final decision is made in respect of what is in [L's] long-term best interests." My decision in this case expressly relies on those statements and assurances.

13 The facts presented in evidence lead me to the following conclusions. First, it is in the best interests of L that a long-term plan for her future care be settled, to avoid her care arrangements drifting without resolution and to avoid exposing her to the risk of disruption to her life at a later stage. Secondly, there is a process under way, involving Mr and Mrs T, Anglicare and the Department, that should lead to the adoption of a plan for L's future care, but it has not yet been brought to fruition. Thirdly, this process needs to be brought to finality effectively and expeditiously. Fourthly, the Department's officers are best placed to drive the process forward and avoid any further delay, and they must therefore remain involved in that role. I believe there is a risk that if the Department is taken out of the picture, the process will flounder. My objective, therefore, is to put in place arrangements that will preserve the existing placement with Mr and Mrs T, keep Anglicare in its position of regular supervision of the placement, and also give the Department the overarching role and responsibility of making sure that everyone moves towards a satisfactory long-term solution. Relevant statutory provisions 14 Section 84, which is in Part 8 of Chapter 4 of the Act, is as follows: "(1) The Court may postpone the determination of any application to the Court for an order for the adoption of a child and make an interim order for parental responsibility for the child in favour of the prospective adoptive parent or parents. (2) On application to the Court by the Director-General or a principal officer, the Court may make an interim order for parental responsibility for the child in favour of the Director-General or principal officer. (3) An interim order is subject to such terms and conditions as the Court thinks fit. (4) The Court must not make an interim order in relation to a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person. (5) While an interim order remains in force in relation to a child, the person or persons in whose favour the order is made have parental responsibility for the child." 15 Although the summons in terms refers to an order under s 84(1), it is obvious (and confirmed in written submissions) that an interim order under s 84(2) is sought. Under s 85(1) an interim order under s 84 remains in force only for a period not exceeding a year, unless the Court extends it, and the Court cannot extend the order beyond two years. 16 Section 75(1)(a) (which is located in Part 6 of Chapter 4) provides that the Director-General has parental responsibility for a child to the exclusion of all other persons after general consent to the adoption of the child has been given by every person whose consent to the adoption is required. According to the evidence, that condition has been satisfied. Section 75(4) states that subsection (1) does not apply to a child unless and until the Director-General is satisfied that the condition has been satisfied, or the Court makes an order under s 84 in the Director-General's favour. It appears from the evidence and submissions before me that the Director-General is satisfied that general consents have been given in accordance with s 75(1)(a). Consequently under s 75(1)(a) the Director-General has acquired parental responsibility for L. Parental responsibility under s 75 continues until one of the events specified in s 79(1), such as the making of an adoption order, takes place. It does not expire merely by the effluxion of time. 17 Under s 78(1), the Director-General must make a report to the Court concerning any child for whom he has parental responsibility under Part 6 of the Act if he has not, within a period of one year after taking over parental responsibility, ceased to have parental responsibility. Section 78(2) authorises the Court to make any order concerning parental responsibility for the child that it thinks fit, including, under subsection (3), an order that the Director-General continue to have parental responsibility for the child for a further period of one year. While the Court is authorised by s 78(3) to make a parental responsibility order, the section does not require it to do so. 18 Section 79(2) authorises the Director-General to place a child for whom he has parental responsibility under s 75 or 78 in the care responsibility of a suitable person. If such a placement is made, then under s 79(2A) the Director-General's parental responsibility under s 75 or 78 is suspended during the placement.

19 Before 2006, adoptions legislation in this State had long provided that the Director-General's guardianship of a child for whom general consent to adoption had been given would come to an end if the Director-General placed the child in the care of a suitable person (see Adoption of Children Act 1965 (NSW), s 34(5)(c1) and (6); Adoptions Act 2000 (NSW) s 79(2) (before the 2006 amendments)). Apart from replacing the concept of guardianship with the concept of parental responsibility, as noted below, the Adoption Amendment Act 2006 introduced ss 79(2A) and (2B), 79A and 79B, which according to the explanatory notes to the Bill were introduced to facilitate the return of children to the parental responsibility of the Director-General. During the Committee debate on the second reading of the Bill, the Parliamentary Secretary explained that the new provisions were intended to operate when the pre-adoptive placement was found not to be in the best interests of the child and the prospective adoptive parents had not co-operated in relinquishing their care responsibility for the child. The Bill would enable the Director-General to terminate the pre-adoptive placement and, if necessary, seek a warrant to enforce an order that the child be returned to the care of the Director-General (Hansard, Legislative Council, 21 November 2006, 10:43 p.m., Mr H Tsang). The legal effect of placement was altered from putting the Director-General's guardianship to an end, to merely suspending the Director-General's parental responsibility. 20 The precise effect of "suspension" of the Director-General's parental responsibility was not made clear by the amending legislation. By s 79(4), the loss of parental responsibility for a non-citizen child does not affect any duty imposed on the Director-General by any law with respect on-going supervision and reports. There is no corresponding provision in respect of a citizen child. That appears to make it at least arguable that, when the Director-General places the child in the care responsibility of a suitable person, and consequently the Director-General's parental responsibility is suspended under s 79(2A), the placement removes any duty imposed on the Director-General for on-going supervision until the happening of some future event which reverses the suspension of the Director-General's parental responsibility. That is not the arrangement that I wish to see adopted in the present case. The present application 21 The Director-General has informed me in written submissions that the practice of the Department's Adoption and Permanent Care Services is to make a s 78 report, when it is required, by means of an application seeking an interim order under s 84(2). Hence the present application is essentially a report to the Court under s 78, framed within an application for an interim order under s 84(2). 22 The application raises the following issues: (i) Does the Court have the power to make an interim order under s 84(2), in circumstances where an adoption application has not yet been made? (ii) If the Court has this power, should it make an order under s 84(2), or make an order under s 78(3), or rely on the statutory conferral of parental responsibility under s 75 and accordingly decline to make a parental responsibility order? The Court's power under s 84(2) 23 In Application by Director-General of Department of Community Services; re BCG (a child) [2003] NSWSC 1040; BC200306811, Bryson J was dealing with an application for an order under s 35(3) approving the placement of an aboriginal child with proposed adoptive parents. There was no adoption application on foot, and obviously on the facts such an application would have been premature. But the birth parents had given general consents to the adoption of the child. The Director-General asked the Court to make an interim order for parental responsibility under s 84 (presumably s 84(2)). Bryson J said (at [9]): "In my view it is not appropriate to make an order under s 84, as on a whole view of that section including subsections (1) and (4) the section relates to a case where there is an application to the Court for an order for the adoption of the child, and the application remains undetermined. In my view guardianship under s 75 continues notwithstanding adoption placement, and will continue until an application is in fact made to the Court for an adoption order. There has not yet been such an application; the present application relates only to placement, and there is no occasion to make an order expressly dealing with parental responsibility or to disturb the Director-General's continuing guardianship under s 75." 24 At least in part, these observations go to the exercise of the Court's discretion. In that case the principal issue for the Court to determine was whether to approve the placement, a step that needs to be taken very early in the adoption process. The Court may well conclude that it is best not to make a parental responsibility order, and to rely on s 75, at that early stage. There may be a stronger case for the making of an order where, as here, the placement commenced over a year before the application to the Court and the Director-General comes before the Court with a report under s 78. 25 To the extent that his Honour's observations, in the quoted passage, suggest that the Court has no power to make an interim order under s 84(2) in the absence of an adoption application, I must respectfully disagree, although I acknowledge that there is a plausible argument in support of his Honour's view. 26 A chain of reasoning in favour of his Honour's view would be as follows: (i) all of the provisions of s 84 should be construed as relating to interim orders in proceedings where there has been an application to the Court for an order for the adoption of a child; (ii) that construction is confirmed by the reference to "the" child in s 84(2), the word "the" identifying the child as the one referred to s 84(1); (iii) the subsections of s 84 are not free-standing because they all relate to the concept of the interim, pending determination of an adoption application, which s 84(1) introduces; (iv) an "interim" order is made in the interim after the Court has postponed determination of the application for an order for adoption and until the Court determines the application; (v) if the Director-General can apply under s 84(2) at any time, without any pending application for an adoption order, the word "interim" is deprived of content; (vi) until the 2006 amendments to the Adoption Act, the Director-General was the guardian of the child once general consents to adoption were given by the birth parents, and that position continued until (in the normal case) an adoption order was made (s 79(1)); in those circumstances there was not usually any need for the Director-General to obtain an interim order for parental responsibility (or, when the legislation was in an earlier form, an interim order for custody); the occasion for seeking a different and (it may be) more intense position of responsibility for the child by means of an interim order is the making of an adoption application which the Court postpones. 27 There is, however, persuasive contrary reasoning on each of these points. As to (i), there is nothing in the language of s 84(2) itself to suggest that the Court's power under that subsection arises only after an adoption application has been made. Whereas in subsection (1) the power to make an interim order for parental responsibility in favour of the prospective adoptive parents is coupled with power to make an order postponing the determination of any application for an adoption order, the Court's power to make an interim order for parental responsibility in favour of the Director-General under subsection (2) stands in isolation, with no corresponding coupling or other similar qualification.

28 As to (ii), subsection (1) refers to the court postponing the determination of "any" application for an adoption order, the word "any" signifying that there is no assumption that an application for an adoption order is already in existence. Therefore, under subsection (1) the Court is empowered to make an interim order for parental responsibility in favour of the prospective adoptive parents even before they have made their application for adoption, so long as an adoption application is sufficiently in contemplation that they can properly be described as the prospective adoptive parents. When, therefore, s 84(2) refers to "the" child, it identifies, by reference back to subsection (1), the child who is either the subject of an existing application for an adoption order or is the subject of a contemplated application for such an order. 29 Points (iii), (iv) and (v) turn on the concept of an "interim" order, a concept that clearly binds together the various subsections of s 84. It is said that the "interim" is the interim between the postponement of the making of the application for an adoption order and the eventual making of the order. It seems to me, however, that the word "interim" in s 84 is used in the sense of a temporary order, either to be revoked or to be replaced by an adoption order, in due course, but available to be made whenever some temporary arrangement needs to be endorsed by the court, whether or not the care process has developed to the stage that an application for an adoption order has been made. Under this broader meaning of the word "interim", the period begins when the adoption process commences by virtue of a need emerging for proper care of the child. 30 As to point (vi), it is true that there is not usually any need for the Court to make a parental responsibility order to disturb the statutory parental responsibility imposed upon the Director-General in the period between general consents to adoption by the birth parents and the making of an adoption order. It is also true that a decision by the Court to postpone the determination of the application for an adoption order is likely to be one of the unusual occasions when a parental responsibility order is appropriate. But there may be other occasions where it is appropriate to make an order, such as where the statutory parental responsibility of the Director-General has extended for more than a year. In that case s 78(1) requires the Director-General to report to the Court and s 78(2) and (3) expressly authorised a parental responsibility order to be made. In my view s 84(2) is another source of the Court's power to make such an order, whether or not an application for an adoption order has been made. 31 The legislative history ss 75, 78, 79 and 84 of the Act is of only limited assistance. The predecessor of s 84, s 41 of the Adoption of Children Act 1965 (NSW), related to an interim order for custody, in circumstances where, under s 34(1), the Director-General became the guardian of the child after general consent had been given. The word "guardian" was defined in s 6 to include a person having the custody of the child under a court order. The 2000 Act before the 2006 amendments replaced the concept of custody in s 84 with parental responsibility, and drew a distinction between guardianship and parental responsibility, both of which were defined terms. The Director-General was guardian of a child after general consents had been given by the birth parents. Section 78(2) and (3) permitted the making of a guardianship or other parental responsibility order, and s 84 dealt with interim parental responsibility orders. 32 The 2006 amendments systematically removed the concept of guardianship from the Act, substituting the concept of parental responsibility on every occasion. The Explanatory Notes to the amending Bill said that the change was made in order to align the concepts used in the Act with the concepts used in the Children and Young Persons (Care of Protection) Act 1998 (NSW). When the Children and Young Persons (Care and Protection) Bill was introduced into Parliament in 1998, the Minister for Community Services said in her second reading speech that, in line with reforms to the Family Law Act, the Bill would abandon certain terminology including the terminology of custody and guardianship, which would be replaced with the concept of parental responsibility (Hansard 11 November 1998). 33 There was a shift of wording from s 41(1) of the 1965 Act (which applied "upon an application to the Court for an order for the adoption of a child") to s 84(1) (which empowered the court to postpone the determination of any application to the Court for an adoption order and to make an interim parental responsibility order in favour of the prospective adoptive parents). There is no foundation for presuming that the change of wording was not intended to achieve the change of substance which the natural meaning of the words conveys. The 2000 Act implemented major reforms to adoption law in New South Wales after an extensive review by the New South Wales Law Reform Commission (Report No 81: Review of the Adoption of Children Act 1965 (NSW), March 1997). Section 84 of the new Act was a product of that reform process, as the provision was significantly changed from its predecessor, for example by substituting the concept of parental responsibility for the concept of custody.

34 Section 84(4) does not, in my view, limit the scope of the Court's power under s 84(2). Subsection (4) has a clear application to the circumstances envisaged by subsection (1). Its effect is to require that the persons in favour of whom an interim parental responsibility order is made must not only be the prospective adoptive parents; they must also be persons in favour of whom the Court could lawfully make an order for the adoption of that child. But in my opinion s 84(4) cannot have been intended to apply in the case of a parental responsibility order made in favour of the Director-General under s 84(2), because it is nonsensical to inquire whether the Court could lawfully make an adoption order in favour of the holder of the statutory office of Director-General, acting in that capacity. 35 To construe s 84(2) as a provision limited to a case where an application for an adoption order has already been made would be to fetter the Court's power in a way that might, in presently unforeseen circumstances, prevent the Court from doing justice in the best interests of the child. Such a construction should not be adopted unless the language of the legislation clearly demands it. In my view, far from demanding such a construction, the language and context of s 84(2) require that the broader construction be adopted. 36 My conclusion, therefore, is that s 84(2) gives the Court the power to make an interim parental responsibility order in favour of the Director-General even where, as in the present case, no application for an adoption order has yet been made. The Court also has the power to make a parental responsibility order in favour of the Director-General under s 78(3), whether or not an adoption application has been made. There is also a statutory power to make a parental responsibility order under s 80(5) in the course of a preliminary hearing, but that provision assumes that an application for adoption has been made and so it is inapplicable in this case. Should the Court make a parental responsibility order in favour of the Director-General, and if so, under what provision? 37 In my opinion it is in the best interests of the child that, for the time being, the Director-General should retain parental responsibility. I see a parental responsibility order in favour of the Director-General as part of the arrangements to ensure, as explained at [13] above, that the process of settling an effective plan for the long-term care of L is brought to fruition. A parental responsibility order will confirm the Director-General's overarching role of driving the process forward and his responsibility for achieving a satisfactory outcome. 38 In a difficult case such as this, it is likely to be useful for the Director-General's position to be reflected in an order of the Court, rather than merely the operation of the statute, especially since some provisions of the statute (including s 79(2A)) may give rise to ambiguity in their application to the facts. 39 In the absence of a parental responsibility order, the Director-General's responsibility to coordinate the process and drive it forward may have been effectively removed by the placement and the suspension effected by s 79(2A). That is not the outcome that I wish to achieve by my orders. An interim parental responsibility order under s 84(2) is not subject to suspension under s 79(2A).

40 If no parental responsibility order is made, the Director-General's statutory parental responsibility under s 75 will not be subject to any time limit, whereas an order under s 84(2) would necessarily introduce a time limit. However, it seems to me that the introduction of a time limit on the duration of parental responsibility is not a disincentive on the facts of the present case. The order can operate for up to a year and can be extended for another year. One would think, and hope, that a proper long-term plan for L will be settled well within that time frame. 41 On balance, therefore, it seems to me better in this case to make a parental responsibility order in favour of the Director-General than to leave the issue to be resolved under the statute. 42 Should the order be made under s 84(2) or under s 78(3)? In my view the correct course is to make the order under s 84(2). Section 84(2) allows for greater flexibility in the duration of the order. And more importantly, parental responsibility conferred by an order under s 84(2) is undiminished by the suspension effected by s 79(2A), which applies only where parental responsibility has arisen under s 75 or 78. Provision for regular supervision by Anglicare 43 The summons also seeks an order making provision for the Principal Officer of Anglicare to provide regular supervision of L's placement with Mr and Mrs T. The Court's power to make such provision, in conjunction with an interim parental responsibility order under s 84(2), is found in s 84(3), which states that an interim parental responsibility order is subject to such terms and conditions as the Court thinks fit. 44 In my opinion provision of that kind should be made. Since, as I have said, the vesting of parental responsibility in the Director-General under s 84(2) is not qualified by s 79(2A), provision recognizing the placement through Anglicare needs to be built into the orders. The orders will have the effect of confirming that the regular supervision of the placement is the responsibility of Anglicare, while the Director-General retains overall parental responsibility, which he will presumably seek to discharge collaboratively with Anglicare. Further Report on L's progress 45 The summons also seeks provision for the Principal Officer of Anglicare to furnish a report on the child's progress to the Court within 12 months. The Court's power to make such an order, as a term of the interim parental responsibility order, is found in s 84(3). 46 In my opinion there is a strong case for calling on Anglicare to provide a further report, addressing the matters which, according to the evidence, are currently under way. But, even allowing for timetable slippage, I cannot see why the report should be deferred for a year. In my view there should be a report in no later than three months' time, either to the effect that a long-term plan has been devised, or explaining why that has not occurred. That seems to be consistent with the most recent evidence provided by the Department. 47 I think it would be preferable for Anglicare's report to be given to the Director of Adoption and Permanent Care Services, rather than to the Court. The order that I shall make will dispose of the present summons, on a final basis. Anglicare's report will probably lead, one way or another, to a further application in a fresh summons. That should be the context in which the report is brought before the Court. 48 I shall therefore direct Anglicare Adoption Services, by its Principal Officer, to provide to the Director of Adoption and Permanent Care Services, Department of Community Services, a report on L's welfare and progress by no later than Wednesday 25 June 2008. Conclusion 49 My order will be as follows: ORDER, under s 84(2) of the Adoption Act 2000 (NSW), for parental responsibility for [L] ("the child") in favour of the Director-General of the Department of Community Services for the period up to and including Wednesday 25 March 2009, on terms that Anglicare Adoption Services, by its Principal Officer: (a) provides regular supervision of the child's placement with Mr and Mrs [T]; and (b) provides a further report on the child's welfare and progress to the Director, Adoption and Permanent Care Services, Department of Community Services, by no later than Wednesday 25 June 2008. **********

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